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602 F.

2d 1123
13 ERC 1403, 53 A.L.R.Fed. 469, 9
Envtl. L. Rep. 20,556

UNITED STATES of America, Appellee,


v.
FREZZO BROTHERS, INC., Guido Frezzo, and James L.
Frezzo, Appellants.
Nos. 78-2670 to 78-2675.

United States Court of Appeals,


Third Circuit.
Argued June 7, 1979.
Decided July 13, 1979.
Rehearing Denied Oct. 22, 1979.

William J. Gallagher (argued), Randy L. Sebastian, MacElree, Harvey,


Gallagher & Kean, Ltd., West Chester, Pa., for appellants.
Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief,
App. Div., Bruce J. Chasan (argued), Asst. U.S. Atty., Philadelphia, Pa.,
for appellee.
Before ADAMS and ROSENN, Circuit Judges, and LACEY, District
Judge.*
OPINION OF THE COURT
ROSENN, Circuit Judge.

Since the enactment in 1948 of the Federal Water Pollution Control Act, 62
Stat. 1155 ("the Act"), the Government has, until recent years, generally
enforced its provisions to control water pollution through the application of
civil restraints.1 In this case, however, the Government in the first instance has
sought enforcement of the Act as amended in 1972, 33 U.S.C.A. 1251-1376
(Supp.1973), against an alleged corporate offender and its officers by criminal
sanctions. Whether the Government may pursue the criminal remedies under
the Act before instituting a civil action or before giving written notice of the

alleged violation is the principal issue presented in this appeal.


2

The appellants were convicted by a jury on six counts of willfully or


negligently discharging pollutants into a navigable water of the United States
without a permit, in violation of 33 U.S.C. 1311(a), 1319(c). The corporate
defendant, Frezzo Brothers, Inc., was fined $50,000, and the individual
defendants, Guido and James Frezzo received jail sentences of thirty days each
and fines aggregating $50,000. The Frezzos appeal from the trial court's final
judgment of sentence. We affirm.I.

Frezzo Brothers, Inc., is a Pennsylvania corporation engaged in the mushroom


farming business near Avondale, Pennsylvania. The business is family operated
with Guido and James Frezzo serving as the principal corporate officers. As a
part of the mushroom farming business, Frezzo Brothers, Inc., produces
compost to provide a growing base for the mushrooms. The compost is
comprised mainly of hay and horse manure mixed with water and allowed to
ferment outside on wharves.

The Frezzo's farm had a 114,000 gallon concrete holding tank designed to
contain water run-off from the compost wharves and to recycle water back to
them. The farm had a separate storm water run-off system that carried rain
water through a pipe to a channel box located on an adjoining property owned
by another mushroom farm. The channel box was connected by a pipe with an
unnamed tributary of the East Branch of the White Clay Creek. The waters of
the tributary flowed directly into the Creek.

Counts One through Four of the indictment charged the defendants with
discharging pollutants into the East Branch of the White Clay Creek on July 7,
July 20, September 20, and September 26, 1977. On these dates Richard
Casson, a Chester County Health Department investigator, observed pollution
in the tributary flowing into the Creek and collected samples of wastes flowing
into the channel box. The wastes had the distinctive characteristics of manure
and quantitative analysis of the samples revealed a concentration of pollutants
in the water. The Government introduced meteorological evidence at trial
showing that no rain had been recorded in the area on these four dates. Based
on this evidence, the Government contended that the Frezzos had willfully
discharged manure into the storm water run-off system that flowed into the
channel box and into the stream.

Investigator Casson returned to the Frezzo farm on January 12, 1978, to inspect
their existing water pollution abatement facilities. Guido and James Frezzo

showed Casson both the holding tank designed to contain the waste water from
the compost wharves, and the separate storm water run-off system. Casson
returned to the farm on May 9, 1978 with a search warrant and several
witnesses. This visit occurred after a morning rain had ended. The witnesses
observed the holding tank overflowing into the storm water run-off system.
The path of the wastes from the Frezzo holding tank to the channel box and
into the stream was photographed. James Frezzo was present at the time and
admitted to Casson that the holding tank could control the water only 95% Of
the time. Samples were again collected, subjected to quantitative analysis and a
high concentration of pollutants was found to be present. This incident gave rise
to Count Five of the indictment.
7

Additional samples were collected from the channel box on May 14, 1978, after
a heavy rain. Again, a concentration of pollutants was found to be present. This
evidence served as the basis for Count Six of the indictment. At trial, the
Government introduced evidence of the rainfall on May 9 and May 14 along
with expert hydrologic testimony regarding the holding capabilities of the
Frezzos' tank. The Government theorized that the holding tank was too small to
contain the compost wastes after a rainstorm and that the Frezzos had
negligently discharged pollutants into the stream on the two dates in May.

The jury returned guilty verdicts on all six counts against the corporate
defendant, Frezzo Brothers, Inc., and individual defendants, Guido and James
Frezzo. The trial court denied the defendants' motions for judgment of acquittal
and new trial in a memorandum opinion, United States v. Frezzo Brothers, Inc.,
461 F.Supp. 266 (E.D.Pa. 1978).

II.
9

The Frezzos first argue that the Administrator of the Environmental Protection
Agency must either give them some notice of alleged violations of the Federal
Water Pollution Control Act, or institute a civil action before pursuing criminal
remedies under the Act, Judge Broderick, the trial judge, rejected this
argument, 461 F.Supp. at 268, relying primarily on United States v. Phelps
Dodge, 391 F.Supp. 1181 (D. Ariz. 1975), which held that there were no civil
prerequisites to the Government's maintenance of criminal proceedings under
the Act. We agree.

10

The enforcement provisions of the Act are contained in 33 U.S.C. 1319. The
criminal provision of the Act, 1319(c) provides in relevant part:

(1) Any person who willfully or negligently violates section 1311 . . . of this title . . .
11

shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of
violation, or by imprisonment for not more than one year, or by both. . . .
12

This provision is preceded by 1319(a) dealing with state enforcement and


compliance orders, and 1319(b) governing civil actions. There is conflicting
legislative history with respect to whether a compliance order or a civil suit by
the Administrator should be a prerequisite to the Government's institution of
criminal proceedings under 1319(c).2 The district court in Phelps Dodge,
however, relied on the final House Committee Report which clearly indicated
that written notice of the violation, administrative, civil, or criminal remedies
under the Act were to be Alternative remedies. The key portion of the House
Committee Report provides:

13

Whenever on the basis of any information available to him the Administrator


finds that anyone is in violation of any of these requirements, he May take Any
of the following enforcement actions: (1) he shall issue an order requiring
compliance; (2) he shall notify the person in alleged violation in such state of
such finding . . . or (3) he shall bring a civil action; or (4) he shall cause to be
instituted criminal proceedings.

14

Legislative History, supra at 801-02 (emphasis supplied). This statement led


the court in Phelps Dodge to conclude that the Administrator "is not required to
proceed first to effect a correction by civil means before instituting criminal
proceedings." 391 F.Supp. at 1184. An identical result was reached by the
court in U. S. v. Hudson Farms, Inc., 12 E.R.C. 1144, 1146 (E.D.Pa.1978).3

15

We believe that these cases place a correct gloss on the enforcement provisions
of the Act.4 There is nothing in the text of 1319(c) that compels the
conclusion that prior written notice, other administrative or civil remedies are
prerequisite to criminal proceedings under the Act. The Senate acceded to the
House in not making civil enforcement mandatory upon the Administrator
under section 1319. Legislative History, supra at 174. Hence, we can only
conclude that whatever support existed for the position urged by the Frezzos
did not prevail in the enactment of the final Bill.

16

Further, we see no reason why the Government should be hampered by


prerequisites to seeking criminal sanctions under the Act. The Frezzos urge that
it can only be through prior notification, followed by continued polluting in the
face of such notice, that willful violations of the Act can be established. We
find this argument unconvincing. Although continued discharges after
notification could be one way for the Government to prove scienter, it is

certainly not the only way to establish willful violations. The Government
could logically argue, as it did in this case, that the circumstances surrounding
the alleged discharges manifested willful violations of the Act and that it had
the power to pursue criminal rather than civil sanctions. Furthermore, in view
of the broad responsibilities imposed upon the Administrator of the EPA, he
should be entitled to exercise his sound discretion as to whether the facts of a
particular case warrant civil or criminal sanctions.5 We therefore hold that the
Administrator of the EPA is not required to pursue administrative or civil
remedies, or give notice, before invoking criminal sanctions under the Act.
III.
17

The Frezzos next contend that the indictment should have been dismissed
because the EPA had not promulgated any effluent standards applicable to the
compost manufacturing business. The Frezzos argue that before a violation of
1311(a) can occur, the defendants must be shown to have not complied with
existing effluent limitations under the Act. The district court disagreed, finding
no such requirement. 461 F.Supp. at 268-69. We agree with the district court.

18

The core provision of the Act is found in 1311(a) which reads:

19

Except as in compliance with this section and sections 1312, 1316, 1317, 1328,
1342, and 1344 of this title, the discharge of any pollutants by any person shall
be unlawful.

20

Section 1311(b) then sets out a timetable for the promulgation of effluent
limitations for point sources and section 1312 provides for the establishment of
water quality related effluent limitations. The Frezzos contend that they cannot
have violated the Act because the EPA has not yet promulgated effluent
limitations which they can be held to have violated. Appellants rely primarily
on United States v. GAF Corporation, 389 F.Supp. 1379 (S.D. Texas 1975) as
support for their position. That case did hold that before an abatement order
may be issued pursuant to 1319(a)(3) of the Act, the defendants must be
shown to have violated an applicable effluent limitation. 389 F.Supp. at 138586. The Government argues, however, that the decision is incorrect and cites
American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 113, 539 F.2d
107, 115 (1976) for the proposition that:

21

By 1972 Congress determined upon wholly a new approach. The basic concept
of the Act (section 1311(a)) we construe in this case is an ultimate flat
prohibition upon all discharges of pollutants . . . .

22

Indeed, the court specifically noted that "(t)his prohibition which is central to
the entire Act is statutory and requires no promulgation." Id., 176
U.S.App.D.C. at 126, 539 F.2d at 128.

23

The Sixth Circuit has enforced criminal penalties for violation of section
1311(a). In United States v. Hamel, 551 F.2d 107, 109 (6th Cir. 1977), the
court stated: "The negligent or wilful violation of 1311(a), however, without
justification subjects one to the criminal sanctions (sic) 1319(c) (1)." The
Government contends in the instant case that the lack of effluent limitations is
no defense to a violation of 1311(a). It argues that when no effluent
limitations have been established for a particular business, the proper procedure
is for the business to apply for a permit to discharge pollutants under 33 U.S.C.
1342(a), which allows the Administrator to establish interim operating
conditions pending approval.6 The district court in GAF explicitly rejected this
argument as placing too harsh a burden on the defendant because it viewed the
Act as not allowing any discharge pending approval of the permit. 389 F.Supp.
at 1386. The Government contends in the present case, however, that the
absence of effluent limitations should not be allowed to nullify the flat
prohibition on discharges under 1311(a). We agree.

24

The GAF court appropriately recognized that the legislative history of the Act
was "curiously incomplete" on the issue in question. Id. We therefore must
interpret the statute in a fashion that best effectuates the policies of the Act. The
basic policy of the Act is to halt uncontrolled discharges of pollutants into the
waters of the United States. 33 U.S.C. 1251. In fact, the Act sets forth "the
national goal that the discharge of (all) pollutants into the navigable waters be
eliminated by 1985." Id. 1251(a)(1); United States v. Hamel, supra at 109.
We see nothing impermissible with allowing the Government to enforce the
Act by invoking 1311(a), even if no effluent limitations have been
promulgated for the particular business charged with polluting. Without this
flexibility, numerous industries not yet considered as serious threats to the
environment may escape administrative, civil, or criminal sanctions merely
because the EPA has not established effluent limitations. Thus, dangerous
pollutants could be continually injected into the water solely because the
administrative process has not yet had the opportunity to fix specific effluent
limitations. Such a result would be inconsistent with the policy of the Act.

25

We do not believe, as did the court in GAF, that the permit procedure urged by
the Government is unduly burdensome on business. If no effluent limitations
have yet been applied to an industry, a potential transgressor should apply for a
permit to discharge pollutants under section 1342(a). The Administrator may
then set up operating conditions until permanent effluent limitations are

promulgated by EPA. The pendency of a permit application, in appropriate


cases, should shield the applicant from liability for discharge in the absence of
a permit. 33 U.S.C. 1342(k). See Stream Pollution Con. Bd. of Ind. v. U. S.
Steel Corp., 512 F.2d 1036, 1041 n. 12 (7th Cir. 1975). EPA cannot be
expected to have anticipated every form of water pollution through the
establishment of effluent limitations. The permit procedure, coupled with broad
enforcement under 1311(a) may, in fact, allow EPA to discover new sources
of pollution for which permanent effluent standards are appropriate.
26

In the present case, it is undisputed that there was no pending permit to


discharge pollutants; nor had Frezzo Brothers, Inc., ever applied for one. This
case, therefore, appears to be particularly compelling for broad enforcement
under sections 1311(a), 1319(c)(1). The Frezzos, under their interpretation of
the statute, could conceivably have continued polluting until EPA promulgated
effluent limitations for the compost operation. The Government's intervention
by way of criminal indictments brought to a halt potentially serious damage to
the stream in question, and has no doubt alerted EPA to pollution problems
posed by compost production. We therefore hold that the promulgation of
effluent limitation standards is not a prerequisite to the maintenance of a
criminal proceeding based on violation of section 1311(a) of the Act.

IV.
27

The Frezzos next contend that there was insufficient evidence to convict them
of the charges in the indictment. They virtually concede that the Government
presented sufficient evidence to sustain Count Five. However, defendants
charge that the Government, Inter alia,7 had failed to prove willful or negligent
discharges of pollutants. We disagree because we are persuaded that substantial
evidence in the record supports all six counts of the indictment.8

28

The Government contended at trial that the discharges giving rise to Counts
One through Four of the indictment were willful. To establish this claim, the
Government relied on the samples collected on those four occasions, the
absence of rain on the dates in question, and the elimination of other possible
causes for the pollution. The Frezzos maintain that the Government on this
evidence failed to establish a willful act. We disagree. The jury was entitled to
infer from the totality of the circumstances surrounding the discharges that a
willful act precipitated them. The Government did not have to present evidence
of someone turning on a valve or diverting wastes in order to establish a willful
violation of the Act.9

29

The Government's theory on Counts Five and Six was that the discharges were

negligently caused by the inadequate capacity of the holding tank. Count Five
was amply supported by eyewitness testimony, samples of the pollutants,
evidence of rainfall and expert hydrologic evidence of the holding tank's
capacity. Count Six was similarly supported by evidence of rainfall, samples,
expert testimony and photographs of the holding tank three days before the
incident, showing it to be near capacity. The jury could properly have
concluded that the water pollution abatement facilities were negligently
maintained by the Frezzos and were insufficient to prevent discharges of the
wastes. We therefore conclude that there was sufficient evidence to sustain the
verdict on all six counts.
V.
30

Defense counsel requested at trial that a special verdict be submitted to the jury
in order to determine, if a guilty verdict were returned, whether the jury found
the defendants guilty of a willful or a negligent violation under each count. The
trial judge denied the request. The Frezzos maintain that this denial constitutes
reversible error. We cannot agree.

31

We start with the proposition that special verdicts are generally disfavored in
criminal cases. United States v. Munz, 542 F.2d 1382, 1389 (10th Cir. 1976),
Cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 555 (1977); United
States v. Jackson, 542 F.2d 403, 412 (7th Cir. 1976). There is the belief that in
the long run special verdicts are not favorable to defendants because "(b)y a
progression of questions each of which seems to require an answer unfavorable
to the defendant, a reluctant juror may be led to vote for a conviction which, in
the large, he would have resisted." United States v. Spock, 416 F.2d 165, 182
(2d Cir. 1969). See United States v. McCracken, 488 F.2d 406, 419 (5th Cir.
1974).

32

The defendants maintain nevertheless, that it was important for the court to
know whether the discharges were found to be willful or negligent under each
Count, in order to assess the sufficiency of the evidence and for sentencing
purposes. The Government, however, proceeded on a theory of willful
discharge under Counts One through Four and on a theory of negligent
discharge under Counts Five and Six. We have already noted our agreement
with the district court's conclusion that the evidence was sufficient to sustain
each of the counts on those theories. Hence, although a special verdict might
have been illuminating, there was no compelling necessity for one in this case.
Further, there is no variance in the statutory penalty between willful and
negligent violations. It therefore would have been within the judge's discretion
to sentence the defendants to the statutory maximum had the jury returned a

special verdict finding the defendants guilty of negligent violations only.


Indeed, it appears that the judge might have done so since he sentenced the
defendants more severely under the negligent counts.10 We therefore conclude
that the trial judge did not abuse his discretion in declining to submit a special
verdict in the instant case.
33

Appellants raise other contentions on appeal all of which are without merit. 11
We perceive no prejudice to the defendants meriting reversal of the verdict and
the grant of a new trial. Accordingly, the judgment of the district court will be
affirmed.

Honorable Frederick B. Lacey, United States District Judge for the District of
New Jersey, sitting by designation

In a comprehensive analysis made in 1973 of the use of criminal sanctions


under the Federal Water Pollution Act, Michael K. Glenn, former deputy
assistant administrator for federal water enforcement, pointed out that: "(D)
uring the past 25 years the federal government has relied almost exclusively on
negotiation, public pressure, and voluntary compliance by dischargers as the
principal means of achieving compliance with federal water pollution control
laws." Glenn, The Crime of "Pollution": The Role of Federal Water Pollution
Criminal Sanctions, 11 Am.Crim.L.Rev. 835, 836 (1973) (footnote omitted)

Senator Muskie expressed the view in the Senate's consideration of the


Conference Committee Report that an abatement order or civil action was
mandatory under the Act. A Legislative History of the Federal Water Pollution
Control Act Amendments of 1972, U.S. Government Printing Office, at 174. A
similar view was espoused by Representative Harsha in the House during
debate on the House Bill. Legislative History, supra at 530

This case was decided after the district court's decision in the present case and
hence was not considered by the court reaching its decision

For a general review of the 1972 amendments See Comment, The Federal
Water Pollution Control Act Amendments of 1972, 1973 Wis.L.Rev. 893
(1973)

There is evidence in the Legislative History of the 1972 Amendments to the


Act that the new criminal sanctions were designed to strengthen the ability of
the Government to pursue criminal remedies for water pollution. See
Legislative History, supra at 216-17, 663, 1481-82. Further, Glenn indicates
that: "One of the prevalent feelings of the Congress during consideration of the

enforcement aspects of the 1972 Amendments was that the enforcement


mechanism of the previous law (Rivers and Harbors Act of 1899, commonly
known as the Refuse Act) did not allow (or require) prompt enforcement
action." Glenn, Supra note 2, at 866 n. 140. Thus, it is evident that prerequisites
to the pursuit of criminal sanctions under the Act would be inconsistent with
Congress' desire for a stronger enforcement mechanism
6

33 U.S.C. 1342(a)(1) provides in relevant part:


(T)he Administrator may, after opportunity for public hearing, issue a permit
for the discharge of any pollutant, notwithstanding section 1311(a) of this title,
upon condition that such discharge will meet all applicable requirements . . . , or
prior to the taking of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines are necessary to
carry out the provisions of this chapter.

The defendants also argued that the Government failed to produce sufficient
evidence to identify them as the parties responsible for the discharges. We
believe the district court correctly concluded, 461 F.Supp. at 270-71, that
sufficient evidence of identification was produced at trial

Judge Broderick stated in denying the defendants' motions for acquittal and a
new trial:
The Government's case was strong, and there can be no doubt that the evidence
was sufficient to support the jury's verdict as to each of the defendants and as to
each of the six counts of the indictment.

461 F.Supp. at 270


9

Judge Broderick noted:


Testimony was presented by several witnesses that on many occasions,
commencing as far back as 1970, the defendants in this case had been
investigated, visited and confronted by a number of state and county employees
concerning the fact that the stream in question was being polluted by runoff
from the compost operation conducted by the defendants on the Frezzo
property.

461 F.Supp. at 270


10

The jail sentences were imposed only for Count Five and the defendants were
more heavily fined under Counts Five and Six

11

Defendants contend that the trial judge improperly instructed the jury that they
could be found guilty as individuals when the indictment charged them with
acting as corporate officers. The Government argued the case on the
"responsible corporate officer doctrine" recognized by the United States
Supreme Court in United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44
L.Ed.2d 489 (1974) and United States v. Dotterweich, 320 U.S. 277, 64 S.Ct.
134, 88 L.Ed. 48 (1943). We have examined the judge's charge and we
perceive no error in the instruction to the jury on this theory
Defendants also contend that the district court erred in failing to suppress the
samples from the channel box because they were taken without a search
warrant. However, the channel box lay on property not owned by the Frezzos.
The district court held that because defendants had no legitimate proprietary or
possessory interest in the neighboring property and because possession was not
an element of the offense charged, they lacked standing under the fourth
amendment to contest the seizure of the samples. The United States Supreme
Court, however, in Rakas v. Illinois, 439 U.S. 128, 138-139, 99 S.Ct. 421, 58
L.Ed.2d 387 (1978), dropped the issue of standing from consideration in fourth
amendment cases in favor of an inquiry into the extent of an individual
defendant's rights under the fourth amendment. Nevertheless, it is still clear
under Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176
(1969) that fourth amendment rights are personal and cannot be vicariously
asserted. We agree that defendants had no proprietary or possessory interest in
the searched premises nor was possession an element of the offense. Hence,
there are no personal rights that may be substantively asserted under the fourth
amendment. Rakas, supra, 439 U.S. at 140-141, 99 S.Ct. 421.

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